In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period. Although the court had denied plaintiffs’ request for email messages with adult content, it gave plaintiffs the option to file a motion for reconsideration after they had been given an opportunity to obtain evidence regarding defendant’s burden of production. This opinion addresses plaintiffs’ renewed motion, in which they requested that defendant produce “at a minimum, documents showing any emails of a sexual or gender derogatory nature sent from 1998 through 2006.”

Evidence relating to defendant’s burden was as follows:

The parties have presented evidence that the e-mails of Defendant’s employees are initially stored on Defendant’s exchange servers. E-mails of Defendant’s current employees that have not been deleted by those employees may still be on Defendants’ server and may be retrieved without great expense. However, it is very unlikely that e-mails from the period relevant to this lawsuit, sent to or from individuals who were employed during that period, are still on Defendants’ servers.

When an individual employee deletes an e-mail, that e-mail can be easily retrieved for only 8 days thereafter. When an individual leaves Defendant’s employ, his e-mails are automatically deleted from Defendants’ servers after 10 days. While deleted e-mails can be retrieved from back-up tapes, after these 8 or 10 day periods, the costs to do so are very high. To conduct a search for e-mails with sexual content, a third-party vendor would have to look through the e-mail of all of Defendant’s approximately 5,300 employees because Defendant does not have servers dedicated to individual branches. Each back-up tape contains three to five days of e-mails. The cost of retrieving e-mails from one back-up tape ranges from $325 to $365 per tape. The cost of retrieving about two years’ worth of e-mails for one employee is approximately $79,300.

(Citations to the record omitted.) The court found that defendant had met its burden of showing that deleted emails from the period relevant to this lawsuit were not reasonably accessible because of undue burden and cost, pursuant to Rule 26(b)(2)(B). It went on to consider whether plaintiffs had nonetheless established good cause for the production:

As an initial matter, the Court finds that Plaintiffs’ discovery requests were extremely broad. The original requests were not limited by time, sender, or recipient. Even as later revised by Plaintiffs, the requests would require a search of all e-mails of all of employees in the [two] branches for a six-year period. Moreover, it is unclear how Defendant would determine whether e-mails were “relating to or evidencing the presence of pornography” or were “of a sexual or gender derogatory nature” without examining the content of each and every e-mail and without making judgments about what constitutes pornography. Finally, although the e-mails would corroborate Plaintiffs’ testimony regarding the prevalence of pornography in the workplace, they would provide little, if any, relevant information that Plaintiffs themselves have not already provided.

For these reasons, the Court finds that the burden or expense of the proposed discovery as a whole outweighs its likely benefit. Nonetheless, retrieval of two narrow categories of e-mails appears unlikely to cause undue burden on Defendant: (1) undeleted e-mails (if any), sent prior to 2007, by a current employee who has been specifically named by Plaintiffs as having had sexually explicit material on his computer; and (2) any e-mails with sexual content sent or received by any of Plaintiffs’ former co-workers of which Defendant is currently aware and has retained. Defendant will be required to produce e-mails in these two categories, but will not be required to search its back-up tapes.

The court denied that part of plaintiffs’ motion that sought spoliation sanctions for deleted email, since degree of defendant’s culpability was low, and the resulting prejudice to plaintiff was relatively minor given other available evidence. Defendant had deleted its employees’ emails in accordance with its normal retention and destruction schedule. Although the destruction occurred after an EEOC complaint alleging company-wide sexual harassment had been filed, the court noted that the plaintiffs in that case had not requested company-wide preservation of emails, nor did they provide defendant with the names of individuals in Atlanta whose emails should be preserved. Thus, the court perceived no bad faith in defendant’s following its established policy for retention and destruction of emails.

Further, the court observed that plaintiff’s lawsuit was primarily based on offensive comments and images on coworkers’ computer screens, as opposed to emails the Plaintiffs themselves received. The court stated that, if the case goes to trial, plaintiffs would be able to describe what they heard and saw, and would also have the computer-generated reports of attempts made by defendant’s employees to access adult websites during the relevant time period, which would partially corroborate their testimony about offensive images on computer screens.

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